STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

SELLAL AHMED, M.D., )

)

Respondent. )

Case No. 00-3807PL

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in the above-styled case on November 21 and 22, 2000, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Carol Gregg, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Sellal Ahmed, M.D., pro se

Post Office Box 14987 Bradenton, Florida 34209

STATEMENT OF THE ISSUE

Should the medical license of Respondent, Sellal Ahmed, M.D., be disciplined for violation of

Subsection 458.331(1)(s), Florida Statutes, because it is

alleged that he is unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

PRELIMINARY STATEMENT

On August 18, 2000, Petitioner, Department of Health, Board of Medicine, filed an Administrative Complaint seeking to discipline the license to practice medicine in the State of Florida of Respondent, Sellal Ahmed, M.D. Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing.

The case was received by the Division of Administrative Hearings on September 12, 2000. On September 21, 2000, a Notice of Hearing was entered setting the final hearing for November 21 and 22, 2000, in Tampa, Florida. On November 14, 2000, an Amended Notice of Hearing was entered setting the hearing in

St. Petersburg, Florida. On November 17, 2000, Respondent moved for a continuance, alleging an injury to his foot. The motion was denied in a telephone hearing on the same day.

The final hearing commenced at the Pinellas County Judicial Center, St. Petersburg, Florida, at 9:00 a.m., on November 21, 2000. Respondent was not present at 9:00 a.m. The case was recessed until 9:30 a.m.

At 9:30 a.m., the Respondent had not appeared, and Petitioner began presenting its case by calling

Raymond Pomm, M.D. Respondent arrived in the hearing room at approximately 10:30 a.m.

Petitioner presented six witnesses. Two witnesses, Raymond Pomm, M.D., and James Adams, M.D., were accepted as expert witnesses. Petitioner offered seven exhibits; all were received in evidence. Respondent presented two witnesses. He offered one exhibit which was received in evidence.

The hearing was concluded on November 14, 2000. Petitioner ordered a transcript of the hearing. Respondent was advised regarding the procedure for obtaining a copy of the transcript. The parties were advised regarding their right to submit proposed recommended orders.

On December 4, 2000, a Motion for Rehearing was filed by Respondent. On December 7, 2000, Petitioner filed its Motion in Opposition to Respondent's Motion for Rehearing. On

December 11, 2000, the undersigned Administrative Law Judge denied Respondent's Motion for Rehearing.

The Transcript of the hearing, which was in two volumes, was, inexplicably, received by the Division of Administrative Hearings on January 9, 2001 (Volume I), and January 25, 2001 (Volume II). A Proposed Recommended Order was received from Petitioner on February 5, 2001.

FINDINGS OF FACT

Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made:

1. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Pursuant to the provisions of Subsection 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate.

2. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued License No. ME 0079442.

3. Respondent is board-certified in internal medicine and gerontology.

4. The Physician Recovery Network (hereinafter "PRN") is an entity created pursuant to Section 456.076, Florida Statutes, to provide an impaired practitioner's program for health care professionals, including Respondent.

5. In late April 2000, PRN received reports from family members of Respondent that Respondent had recently demonstrated

   erratic behavior that may be a reoccurrence of a bi-polar disorder Respondent had experienced in medical school.

6. At the request of PRN, Respondent appeared at Healthcare Connections on April 28, 2000, for evaluation by Dr. James Adams, Peter Vagg, Ph.D., and Dr. David Meyers.

7. Dr. Adams is a board-certified psychiatrist.

   
   

   Dr. Meyers is a psychiatrist and ASAM Certified Addictionist. Dr. Vagg is a clinical psychologist.

8. On May 10, 2000, Drs. Adams, Meyers and Vagg presented their diagnosis of Respondent by letter to PRN. Their diagnosis was:

   AXIS I - Cyclothymia

   AXIS II - Histrionic Personality Disorder with Narcissistic Feature and Anti-Social Traits

   
   

9. Based on the diagnosis, PRN, by letter dated May 19, 2000, presented an Advocacy Contract to Respondent which included PRN monitoring, individual psychotherapy, and quarterly psychiatric follow-up.

10. On May 24, 2000, Respondent responded to the May 19, 2000, letter indicating that he had "no idea what the letter is about and what it is pertaining to."

11. On June 6, 2000, PRN responded to Respondent's letter of May 24, 2000, requesting compliance with Chapter 458, Florida

    Statutes, and asking Respondent to return the signed Advocacy Contract by June 12, 2000.

12. On June 14, 2000, PRN had a telephone discussion with Respondent where the results of the Healthcare Connections evaluation were discussed. During this discussion, Respondent said, "he didn't need any help."

13. On the morning of June 30, 2000, Dr. David Meyers called Respondent and advised him that he "needed to be under contract for at least a year and informed him that his refusal to accept the PRN contract would possibly result in agency action."

14. On June 30, 2000, Respondent called PRN, stating that he did not understand the Advocacy Contract. PRN attempted to discuss the line items of the contract, but Respondent refused and requested that his file be closed.

15. On July 5, 2000, another copy of the Advocacy Contract was mailed to Respondent.

16. By letter of July 20, 2000, PRN notified the Agency for Health Care Administration of Respondent's noncompliance with PRN requirements and recommendations and requested an Emergency Suspension Order based on Respondent's "potentially impairing diagnosis and unwillingness to seek follow-up treatment which make him unable to practice his profession with

    reasonable skill and safety and present a threat to public health, safety, and welfare."

17. The Emergency Suspension Order, issued August 2, 2000, is not a subject of this hearing.

18. Dr. Mehul Shah testified that Respondent started working for his Professional Association (Mehul Shah, P.A.) on April 4, 2000. Respondent went to Pakistan from April 17, 2000, until May 22, 2000, and was discharged from employment on

    July 24, 2000.

    
    

19. Dr. Shah testified that after Respondent returned from Pakistan he observed incidents of bizarre, psychotic behavior. Dr. Shah also received complaints from other physicians and hospital personnel who observed the same type of behavior while Respondent was in the hospital with patients and their families or with hospital personnel.

20. On July 26, 2000, Respondent appeared in Dr. Shah's office and after having a short conversation with Dean Hoffman, Dr. Shah's office manager, withdrew a Torres ultra-light,

    38-caliber revolver from the waistband of his trousers and pointed the revolver at Mr. Hoffman's face so that it came within a few inches of his face.

21. Mr. Hoffman testified that he could see bullets in the cylinder of the revolver and that it appeared to be fully

    loaded. The revolver was loaded when it was removed from Respondent's automobile by police officers a short time later.

22. As Respondent pointed the revolver at the

    
    

    Mr. Hoffman's face, Respondent stated, "I could blow your head into a million pieces" and "your boss is a fucking asshole." Respondent then lowered the weapon and left the office.

23. Mr. Hoffman's account of the incident was confirmed in its entirety by Anita Ryan, another employee who was seated at the reception desk a few inches from Hoffman and Respondent.

24. Respondent was arrested by officers of the

    
    

    St. Petersburg Police Department a short time after the incident and was charged with aggravated assault. The criminal case was pending at the time of this hearing.

25. Dr. Raymond Pomm, a board-certified psychiatrist and Medical Director of the Physician Recovery Network/Impaired Practitioners Program of Florida, testified that without treatment Respondent would be considered severely impaired, which posed a problem regarding the treatment of patients.

26. Dr. James Adams, who examined Respondent on two occasions (the second evaluation took place after Respondent's arrest) and had the benefit of psychological testing by

    Peter Vagg, Ph.D., and an evaluation by Dr. David Meyer, testified that Respondent was psychotic, suffering paranoia. He testified that Respondent did not feel that Respondent had a

    mental illness. Dr. Adams opined that Respondent was unsafe to practice medicine due to his psychotic thinking, the lack of insight into his psychotic thinking, and his unwillingness to be treated.

27. Dr. Adams opined that an appropriate course of treatment would require further diagnostic work-up and treatment according to the diagnosis. Dr. Pomm testified that bi-polar disorder is treatable, but requires life-long treatment and monitoring.

28. The opinions of both Dr. Pomm and Dr. Adams are credible and accepted by the undersigned.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this hearing pursuant to Subsection 120.57(1) and Section 455.225, Florida Statutes.

30. Subsection 458.331(2), Florida Statutes, empowers the Board of Medicine to discipline the licenses of a physician for violating Section 458.331, Florida Statutes.

31. License revocations and discipline procedures are penal in nature. Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint dated August 18, 2000, by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d

    932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla.

    
    

    1987).

    
    

32. The "clear and convincing" standard requires:

    
    

    [T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

33. Petitioner must set forth the charges against Respondent with specificity, carrying the burden of proving each charge, and in the final order set forth explicit findings of fact and conclusions of law addressing each specific charge. Davis v. Department of Professional Regulation, 457 So. 2d 1074 (Fla. 1st DCA 1984); Lewis v. Department of Professional Regulation, 410 So. 2d 593 (Fla. 2d DCA 1982).

34. Petitioner has charged Respondent with violating the following relevant provision of Subsection 458.331(1), Florida Statutes:

    (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

35. Petitioner has demonstrated by clear and convincing evidence that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of his mental condition.

36. The disciplinary guidelines of the Board of Medicine, found at Rule 64B8-8.0012(s), Florida Administrative Code, provide the range of penalties which shall be imposed upon licensees for violation of Subsection 458.331(1)(s), Florida Statutes, as follows:

From probation to denial or indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an administrative fine from

$1,000.00 to $5,000.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsection 458.331(1)(s), Florida Statutes, indefinitely suspending Respondent's medical license until Respondent is able to demonstrate ability to practice with reasonable skill and safety, followed by five years' probation during which Respondent shall submit to PRN monitoring and comply with PRN recommendations, and imposing a $1000 fine.

DONE AND ENTERED this 14th day of February, 2001, in

Tallahassee, Leon County, Florida.

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2001.

COPIES FURNISHED:

Sellal Ahmed, M.D. Post Office Box 14987

Bradenton, Florida 34209

Kim M. Kluck, Esquire Carol Gregg, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Tanya Williams, Executive Director Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-003807PL

Orders for Case No: 00-003807PL